Varde/Brachers claimform - MBNA card

[Smoothound]

Email now sent, just hope it was OK

[Smoothound]

Well today has been and gone and I'm assuming the hearing went ahead without me.

 

I got an automated response to my email and then and email along the lines of "We confirm acceptance of your document, our records will be updated to show the date of filing as the date of this email. If required a reply will be sent within 10 working days." but have heard nothing else.

 

Worst thing is that it appears that there is a letter at home for me from Brachers dated yesterday saying that "as the court has decided to list the claimants application for hearing they will now be attending the hearing"

 

I guess that has really cooked my goose now

[car2403]

Not really. Hopefully the email was received and filed and reviewed by the Judge as part of the hearing. The fact you've notified them in person that you won't be attending will mean that you get a chance to object to any order made once you've received it - but you have to do that within 7 days. The next step is to await the Court order in the post

 

The problem been they will have opposed your request for information, otherwise there was no point in them attending, and the Judge may have reserved the costs of the hearing as part of the case, meaning should you lose you will have to foot the bill for their attendance, even if this is allocated to the small claims track at a later date. (The hearing taking place outside of the small claims track)

 

As you've a relatively high chance of winning this, I'd say this is nothing to worry about.

 

Just check that the case is transferred and make sure you attend as ordered going forward

[Smoothound]

I did put an addition to my sorry I can't make email along the lines of the fact that I felt the documents supplied were insufficient(NoA) and very poor legibility/enforceability(CCA). I only added this in case the hearing went ahead even though I asked for it to vacated and moved to my local court. I'm wondering whether they decided to appear partly because they made an application to change the PoC because of the amount and it seems this was being looked at in the same hearing?

 

As an aside, the further I go on using this site the more twitchy I get with regard to the countless guests browsing these threads

[Bazooka Boo]

Sometimes the guest are simply those browsing on internet, or fellow CAGgers checking in on their phone, but you are right to be twitchy, as all DCA's and other agencies with a vested interest in money use this site to get correct info on consumer law, and try to get the upper hand on their victims. You can always ask the site team to make this thread private if you want?

[Dotty50]

What happens if it is made private Bazooka?

 

I am guilty of being a guest sometimes when I am at work!

[car2403]

Private threads go against the ethos of this site and are not utilised on a regular basis - requests are usually denied unless there is a very good and compelling reason for a private thread. They have also back fired on what the CAG ethos is intended to provide with users given those privileges abusing them and/or not returning with updates once success has been gained. My view is they shouldn't be used at all and it's up to Admin to decide where, when and why they are utilised. If you come to CAG for help, why would you then not assist the rest of the community by openly sharing progress? I, for one, will only help on private threads that are made public after the 'sensitive' period where privacy is required has past. We are here to help each other, not to take and not give back what we get :thumb:Guests are good - there's always someone out there with experience relevant to us that can and they are encouraged to register and contribute.Agreed our approach is open to abuse, but the benefits far outweigh the costs.

[Smoothound]

Letter from court arrived today. Ignored the fact that it should have been transferred to my local Court and dismissed my application but obviously the judge in his "wisdom" accepted the change of PoC by the Claimant and my new service date is 30/1/12 including amended and rubber stamped figures...not that I'm complaining of course but just proves what a farce it all appears to me

[citizenB]

30th of this month..? That's Monday ??

[Smoothound]

30th of this month..? That's Monday ??

 

 

Yep re-service date 30/1/12

[Bazooka Boo]

I fully understand what you are saying Car....

And I completely agree, private threads are all well and good, especially when the case is bound to legal process, and I have absolutely no doubt that the success and results will always be made public once the case has either been to, or fails to, go to court.

IMO private threads are there for those who have been taken to the legal track and want bona fide advice without the misdirection of advice given by others, be it well intentioned or misguided.

[Smoothound]

So I suppose i now have to re-acknowledge service and then do my defence.

 

On what has gone before and the fact that the judge ignored the CCA and the NoA in my Application I am really just back with the fact that currently I am still in my view owed more PPI and the case is still with the FOS so the current debt cannot be pursued?

[Smoothound]

What is my best course of action now bearing in mind the above?

[Smoothound]

Not really. Hopefully the email was received and filed and reviewed by the Judge as part of the hearing. The fact you've notified them in person that you won't be attending will mean that you get a chance to object to any order made once you've received it - but you have to do that within 7 days. The next step is to await the Court order in the post

 

The problem been they will have opposed your request for information, otherwise there was no point in them attending, and the Judge may have reserved the costs of the hearing as part of the case, meaning should you lose you will have to foot the bill for their attendance, even if this is allocated to the small claims track at a later date. (The hearing taking place outside of the small claims track)

 

As you've a relatively high chance of winning this, I'd say this is nothing to worry about.

 

Just check that the case is transferred and make sure you attend as ordered going forward

 

So as the case was dismissed what do I do now?

[car2403]

The Application was dismissed, or the case?If the Application, you seem to have enough info to now acknowledge and defend on the basis we've been talking about throughout all of this - i.e., unenforceable credit agreement

[Smoothound]

The Application was dismissed, or the case?If the Application, you seem to have enough info to now acknowledge and defend on the basis we've been talking about throughout all of this - i.e., unenforceable credit agreement

 

The application was dismissed and my new service date is today. I obviously need to acknowledge that and then put my defence together.

 

This unenforceability of the CCA still confuses me as I did point this out in my email along with the NoA not being from the OC. As the application was dismissed I assumed these points were disregarded as it says nothing about why it was dismissed!

[car2403]

It was either dismissed as it had no merit given the documentation that they've disclosed since, or because you weren't at Court for the hearing and the email didn't reach the Judge in time.To save time and more wasted applications, I'd acknowledge and defend it based on what you've got now.

[Smoothound]

I wish they actually said why then! So basically it was dismissed because I failed to appear or that the documents produced were ok and my application was pointless?

 

If I defend on the strength of the CCA and NoA being invalid now then surely I will lose?

[Smoothound]

On a slightly different tack if I feel I really don't understand enough or feel confident enough to put together and defend this case(which is pretty much how I am now, confused!) how would I go about making an out of court settlement agreement with the claimant? I would imagine the debt was bought for peanuts so I would be able to negotiate a low ish figure and time to settle full and final? I have extremely limited funds so whatever happens any payments will be small for sure

[car2403]

I wish they actually said why then! So basically it was dismissed because I failed to appear or that the documents produced were ok and my application was pointless?

 

If I defend on the strength of the CCA and NoA being invalid now then surely I will lose?

 

Don't panic, Captain Mainwaring!! There's another 2 weeks to put your defence together, based on what you've said earlier in the thread about service date being Monday gone. Have you acknowledged service with an intention to defend, now? If not, do it urgently, or they may seek - and get - judgment by default.

On a slightly different tack if I feel I really don't understand enough or feel confident enough to put together and defend this case(which is pretty much how I am now, confused!) how would I go about making an out of court settlement agreement with the claimant? I would imagine the debt was bought for peanuts so I would be able to negotiate a low ish figure and time to settle full and final? I have extremely limited funds so whatever happens any payments will be small for sure

 

Not sure why you would do that when the debt is totally unenforceable, but I understand. if you want to settle, you would write to the claimant's representatives with an offer of settlement without prejudice to the claim and ask them to agree to your terms. Then the negotiations will begin.

[Smoothound]

Don't panic, Captain Mainwaring!! There's another 2 weeks to put your defence together, based on what you've said earlier in the thread about service date being Monday gone. Have you acknowledged service with an intention to defend, now? If not, do it urgently, or they may seek - and get - judgment by default.

 

Not sure why you would do that when the debt is totally unenforceable, but I understand. if you want to settle, you would write to the claimant's representatives with an offer of settlement without prejudice to the claim and ask them to agree to your terms. Then the negotiations will begin.

 

I've not acknowledged service yet but will do in the next couple of days.

 

I'm happy to put in a defence but I am really confused as to why you feel it is totally unenforceable? Maybe I just don't absorb what has been pointed out throughout this thread?

[car2403]

I've not acknowledged service yet but will do in the next couple of days.

 

I'm happy to put in a defence but I am really confused as to why you feel it is totally unenforceable? Maybe I just don't absorb what has been pointed out throughout this thread?

 

**Cough, cough**

Your 'agreement' is an application form. The issue being an application form can be enforceable if the prescribed terms of credit limit, interest rates and repayment details are part of the same document. If they are in a separate document, the agreement is irredeemably unenforceable by s.60/s.61/s.65/s.127(3) CCA 1974. They will argue that the terms are part of the same document, therefore the agreement is enforceable. You need to argue against that. This is why I'm saying you need to research and come up with your Defence - no longer is a 'template' defence suitable in these cases, as they just won't work.

 

[Smoothound]

Ah right! Couldnt see for looking

 

I guess I'm just not cut out for this back street lawyer lark! Most of this just goes straight through my head I'm just not wired this way at all All the legal stuff and cross referencing etc just goes straight over my head! This is just reading and making a coherent case let alone standing in court and proving it

[Smoothound]

So when I do my defence I would defend just on the CCA as you mention above? I imagine mentioning other things like the dispute with MBNA would undermine it?

[Smoothound]

Anyone?

 

Service now acknowledged. Just hope I can actually make my defence stand up!